The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the discuss the significance of Price Waterhouse v. Hopkins, a Supreme Court case which ruled that Title VII’s prohibition against discrimination because of sex includes discrimination based on gender stereotyping. Importing this reasoning, courts have ruled that the constitutional prohibition against discrimination on sex also prohibits gender stereotyping.
The Author then discusses how because gender stereotyping is often the root of discrimination faced by LGBT employees, Price Waterhouse lays a foundation for sex-based employment discrimination by these individuals. This includes linking discrimination against LGBT employees to comments or views about the person’s gendered appearance or about stereotypes of sexuality linked to a person’s sex (e.g., a man should only form physical and emotional attachments to a woman). For transgender employees, discrimination may be linked to stereotypes about physical manifestations of gender identity.
The Author then goes on to explore how various courts have interpreted constitutional claims brought by LGBT and transgender employees under the above theories, with some theories proving more successful than others. Finally, the Author discusses the level of scrutiny applied by courts when evaluating equal protection and due process claims.
Taylor Flynn, Federal Equal Protection, in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE ch. 15 (Christine Michelle Duffy et al., eds., 2014) (Jennifer L. Levi, contributor).